Lawsuit Seeks to Increase Nursing Home Resident Protections in California

The non-profit nursing home advocacy group, California Advocates for Nursing Home Reform, has filed a lawsuit against the California Department of Public Health, challenging the constitutionality of a 1992 California law, Health and Safety Code ยง 1418.8. Under this law, if a physician deems a patient to be mentally incapacitated, the resident is found to lack sufficient mental capacity to deny medical treatments and administration of such treatments. As such, in certain instances, these residents were denied life sustaining treatment, subjected to the use of physical restraints, and administered psychotropic medications if they did not have a surrogate such as a relative, conservator, or guardian to deny such medical treatment decisions on their behalf. This is because the Department of Public Health has construed the law to allow facilities to administer intrusive treatments, along with forcing residents to take anti-psychotic medication.

The complaint cited several appalling instances of such elder abuse made against nursing home residents as a result of actions taken under this law. For example, one nursing home resident deemed mentally incompetent was restrained to his bed and fed through a feeding tube, in spite of his medical chart containing a statement that he was not incompetent. When staff later asked him if he wanted to live or die, the resident did not answer, and staff withdrew his feeding tube, revoked a life-sustaining care order, and sent him to a hospice where he died. This occurred because some facilities have interpreted the statute to allow them to end residents’ lives by denying them life-sustaining treatment via ‘do not resuscitate’ orders. Another shocking occurrence involved a nursing home resident who was administered antipsychotic medication without staff informing or checking with her family members who could advise the resident as to the treatment. The woman was later found to be competent.


Such inexcusable occurrences demonstrate how physicians and nursing home staff members frequently make significant medical treatment decisions for the resident if the physician deems the patient to be unrepresented and incompetent. Therefore, those bringing the suit claim that physicians often fail to look at proof that the resident is competent or represented by a surrogate, thereby effectively ignoring informed consent. It is currently estimated that about 10,000 nursing home residents and others living in long-term care facilities in California are not only deemed mentally incompetent, but are unrepresented as well when needing to make medical treatment decisions. Consequently, the lawsuit seeks to require court orders for a hearing before nursing home residents are found mentally incompetent, urging that these residents or their legal representatives are entitled to make final decisions regarding medical treatment themselves.

Elderly patients are part of a vulnerable population and require a great amount of care. We entrust caregivers and physicians to provide quality care, and to make decisions that are in our loved ones’ best interests. Therefore, detestable actions of caregivers and physicians are inexcusable and cannot go unnoticed or unpunished. Our passionate attorneys at the Law Offices of Ben Yeroushalmi are here to help end nursing home abuse and neglect. We firmly believe that our most vulnerable cannot continue to be victimized by those who are responsible for their well-being. If your loved one shows any signs of elder abuse, contact our offices at (888) 606-3453 for a free consultation. We are located in both Northern and Southern California and serve every city state-wide.